Authorized Retailer Agreement
This Authorized Retailer Agreement (“Agreement”) is entered into as of 05/16/2016 (the “Effective Date”) between Woodbolt Distribution, LLC d/b/a Nutrabolt, a Delaware limited liability company located at 3891 S. Traditions Drive, 77807 (“Nutrabolt”) and , a located at , , (“Authorized Retailer”). Nutrabolt and Authorized Retailer may be referred to herein individually as a “Party” and collectively as the “Parties”.
WHEREAS, Nutrabolt is in the business of manufacturing and selling dietary and nutritional supplements as well as related products (collectively the “Products”); and
WHEREAS, Authorized Retailer is a specialty retailer whose primary business is the sale of dietary and nutritional supplements through Authorized Retailer’s brick and mortar and/or official online retail locations or a gym/fitness chain who is engaged in the sale of dietary supplements to its members; and
WHEREAS, Authorized Retailer desires to purchase the Products from Nutrabolt’s authorized distributors (“Authorized Distributor”) or directly from Nutrabolt; and
WHEREAS, as a condition of Nutrabolt’s agreement to appoint Authorized Retailer as an authorized retailer of the Products, Authorized Retailer has agreed to the terms described herein.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
- Authorized Retailer’s Sale of Products.
1.1 The Parties agree that Authorized Retailer will purchase the Products solely from Nutrabolt or an Authorized Distributor and shall market and sell the Products in accordance with the terms and subject to the limitations hereof.
1.2 Authorized Retailer is hereby authorized to distribute the Products only in the United States (the “Territory”) through Authorized Retailer’s brick and mortar and/or official online retail locations (collectively the “Authorized Retailer Locations”) to consumers located in and for use only in the Territory. Upon thirty (30) days written or email notice, Nutrabolt reserves the right to restrict the sale of certain Products on a prospective basis to specific States in the Territory, in which case, the foregoing definition of Territory shall be automatically amended to exclude such State with respect to such Products. Authorized Retailer specifically agrees that, it shall not market, advertise or sell the Products:
(a) through Amazon, Ebay, Buy.com, or similar sites or to any third party who Authorized Retailer knows or reasonably believes will sell the Products through Amazon, Ebay, or Buy.com or similar sites;
(b) outside the Territory or to anyone who Authorized Retailer knows or reasonably believes will export or sell the Products outside the Territory; or
(c) to any third party that Nutrabolt has indicated in writing or email are unauthorized.
1.3 Nutrabolt reserves the right at any time, to notify Authorized Retailer in writing or email to cease future sales to any specific customers and, in such event, this Agreement will be deemed amended to include such customer(s) in Section 1.2. In the event that Authorized Retailer knowingly sells the Products in any manner prohibited in Section 1.2 (each an “Unauthorized Sale”), such occurrence shall be a material breach of this Agreement and Nutrabolt shall have the right upon written or email notice to immediately terminate this Agreement. Further, Authorized Retailer acknowledges and agrees that an Unauthorized Sale in violation of Section 1.2 (a), (b) or (c) will cause Nutrabolt to incur substantial economic damages and losses in an amount that is difficult or impossible to quantify, and the Parties agree that the liquidated damages listed herein represents a fair and reasonable estimate thereof. Accordingly, in addition to Nutrabolt’s right of immediate termination of this Agreement, in the event of an Unauthorized Sale, Authorized Retailer shall, upon demand, pay Nutrabolt liquidated damages as follows: (a) one thousand dollars ($1,000) for each Unauthorized Sale as set forth in Section 1.2(a) above; (b) two thousand five hundred dollars ($2,500) for each Unauthorized Sale as set forth in Section 1.2(b) above; and (c) two thousand five hundred dollars ($2,500) for each Unauthorized Sale as set forth in Section 1.2(c) above.
1.4 Authorized Retailer acknowledges Nutrabolt’s unilateral Minimum Advertised Price Policy (“MAP Policy”) as set forth in EXHIBIT A and available for review on vendor.cellucor.com and as may be modified by Nutrabolt from time to time and deemed effective upon notice to Authorized Retailer.
1.5 The Parties acknowledge that Authorized Retailer’s appointment as an authorized retailer and all rights hereunder are non-exclusive, non-transferable nor assignable without the express written consent of Nutrabolt.
1.6 In connection with the sale of the Products by Authorized Retailer hereunder, Authorized Retailer represents and warrants that:
(a) It is a speciality retailer whose primary business is the sale of dietary and nutritional supplements through Authorized Retailer’s brick and mortar and/or its official online retail locations or is otherwise a gym/fitness chain who is engaged in the sale of dietary supplements to its members;
(b) It shall solely purchase the Products for re-sale through Nutrabolt or an Authorized Distributor and no other party;
(c) It shall use commercially reasonable efforts to promote the sale of the Products;
(d) It shall not in any manner alter, modify or change the packaging or labelling on any of the Products including but not limited to altering or removing barcodes, lot numbers, expiration dates, or copyright, trademark or sell-by notices;
(e) It shall not in any manner alter, modify or tamper with the Products or directly or indirectly engage in the manufacture, sale or distribution of counterfeit versions of the Products;
(f) It shall maintain any standards set forth by Nutrabolt for the storage, handling and sale of the Products;
(g) It shall comply with all applicable laws and regulations for the sale of the Products and it shall maintain any and all government approvals, certificates, licenses and permits required in connection thereto, if any;
(h) It shall use commercially reasonable efforts to conduct business in a manner that reflects favourably at all times on the Products and the good name, goodwill and reputation of the Nutrabolt;
(i) It shall avoid deceptive, misleading and unethical practices in connection with the sale of the Products;
(j) It shall not make any statements, representations, warranties or guarantees regarding the Products to consumers or to the trade including but not limited to the features, capabilities, efficacy of or expected results when taking the Products, unless such statements are provided to Authorized Retailer in writing by Nutrabolt. For the avoidance of doubt, the prohibition of this Section shall include any advertisements, point of purchase displays or similar materials.
2.1 Product Quality. Nutrabolt warrants that all Products purchased from Nutrabolt (a) are of good quality, merchantable and fit and safe for consumer use; (b) comply with all applicable federal, and state laws and regulations; and (c) are free of any patent, trademark, or copyright infringement claims. This warranty shall apply to all purchases of Products from Nutrabolt and in the event of a conflict between this Agreement and any purchase order, invoice or other document relating to the sale of Products to Authorized Retailer, the terms of this Agreement shall control. This warranty does not extend to any Product that is modified, altered, or tampered by Authorized Retailer or any third party or which is not handled or stored as directed by Nutrabolt.
2.2 Recall Notifications. In addition to complying with their standard procedures for product recalls, Nutrabolt agrees that in the event of a Product recall, all Product recall notifications regarding any Products purchased by Authorized Retailer shall be sent to Authorized Retailer in accordance with Section 13 as soon as reasonably practical. The recall notice shall indicate the anticipated classification of the recall (Class I, Class II or Class III), together with the lot or product codes as well as product description for each recalled item. The recall notification shall include specific instructions as to what actions Nutrabolt requires Authorized Retailer to perform. Nutrabolt shall reimburse or credit Authorized Retailer the actual out of pocket costs paid by Authorized Retailer for the recalled Products as well as any costs for shipping and/or destruction or disposal associated with the recall.
2.3 Product Returns. In no event shall Nutrabolt be obligated to provide a credit, replacement or otherwise accept any returns of the Product purchased by Authorized Retailer from any party other than Nutrabolt directly. Products purchased by Authorized Retailer through an Authorized Distributor are subject to the Authorized Distributors product return policy.
2.4 Warranty Policy. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2.1 ABOVE, NUTRABOLT MAKES NO WARRANTY TO AUTHORIZED RETAILER WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Product List, Pricing and Delivery; Authorized Retailer Publicity.
3.1 Product List. Neither Nutrabolt nor an Authorized Distributor shall be obligated to sell any specific Product to Authorized Retailer, which such decision shall be in the sole discretion of Nutrabolt or an Authorized Distributor and subject to availability.
3.2 Pricing. The price of the Products, including but not limited to discounts, promotions and charge backs, will be determined in the sole discretion of Nutrabolt and shall be listed on the purchase order for the Products. Pricing with respect to the purchase of Products from an Authorized Distributor shall be upon the terms agreed upon between Authorized Retailer and Authorized Distributor.
3.3 Delivery. The delivery of the Products will occur when Nutrabolt or an Authorized Distributor deliver the Products to the Authorized Retailer’s warehouse or retail location located in the United States as listed on the applicable purchase order.
3.4 Publicity: During the term of this Agreement, Authorized Retailer shall be permitted to promote, market or publicize that it is an Authorized Retailer of the Products in the Territory in the Authorized Retailer Locations. Upon expiration or termination of this Agreement, Authorized Retailer shall immediately cease holding itself out as an authorized retailer of Nutrabolt products, shall immediately remove all references related thereto in the Authorized Retailer Locations or in any other locations controlled by Authorized Retailer and for the avoidance of doubt, shall not in any way publicize that it was formerly an authorized retailer of the Products.
Product Payment. Products purchased by Authorized Retailer from Nutrabolt shall be one hundred percent (100%) pre-paid before delivery, except that on a case by case and not precedential basis, Nutrabolt may, subject to credit check and approval provide net thirty (30) terms. In the event, Nutrabolt provides net thirty (30) terms, and payment is not received within thirty (30) days of an invoice, an interest charge shall be assessed on the outstanding balance owed in the amount of the lower of two percent (2%) per month or the maximum amount allowed by applicable law. Assessment of such interest shall not be deemed in lieu of or a waiver of any other right or remedy Nutrabolt may have hereunder or at law. Payment for the purchase of Products by Authorized Retailer from an Authorized Distributor shall be upon the terms agreed between the parties.
Sales Reports. During the term, Authorized Retailer shall deliver written sales reports to Nutrabolt, within a reasonable time from Nutrabolt’s request. The reports shall be sent to firstname.lastname@example.org and shall include retail point of sale information and such other information as is requested by Nutrabolt from time to time. Authorized Retailer shall keep good and accurate books and records with respect to the purchase and sale of the Products, which shall be kept at Authorized Retailer’s place of business. Authorized Retailer shall maintain an archived list of customers designated as unauthorized by Nutrabolt as well as list of customers that Authorized Retailer has determined to be unauthorized based on the provisions in Section 1.2. Nutrabolt reserves the right to audit Authorized Retailer’s books and records at any time, to confirm the accuracy of the monthly reports, at reasonable times upon, reasonable notice. In the event Authorized Retailer fails to provide monthly sales reports as required herein, in addition to any other rights or remedies which may be available to Nutrabolt, Authorized Retailer acknowledges and agrees that such failure shall make Authorized Retailer ineligible to participate in any program involving Nutrabolt’s contribution of promotional money (“PM or SPIFF”) or related marketing programs of Nutrabolt, if any.
Term. This Agreement shall commence on the date first set forth above and unless terminated early by Nutrabolt as otherwise permitted in this Agreement, shall continue for an initial term of one (1) year. Thereafter, the term shall continue for successive one (1) year terms unless either party provides written notice to the other at least thirty (30) days prior to the expiration of the then current term. Notwithstanding the foregoing, Nutrabolt may terminate this Agreement (a) at any time without cause on thirty (30) days advanced written notice, or (b) immediately, upon the giving of written notice in the event of a breach by Authorized Retailer of this Agreement or in the event that Authorized Retailer becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of creditors.
Product Marketing/Coupling. During the term, Authorized Retailer agrees to provide reasonable marketing support for the Products. It is further acknowledged and agreed that Authorized Retailer shall not market or sell the Products coupled with another product which if used together would be in violation of the Product’s suggested use, warnings or product labelling.
Relationship of the Parties. The relationship of Nutrabolt and Authorized Retailer is that of vendor and vendee. Under no circumstances shall Authorized Retailer and its agents and employees be deemed employees, agents, or representatives of Nutrabolt. Neither Party shall have any right to enter into any contract or commitment in the name of, or on behalf of, the other, or to bind the other in any respect whatsoever.
- Nutrabolt’s Intellectual Property.
9.1 The Product will be marketed and sold by Authorized Retailer solely under the trademarks, copyrights and other intellectual property belonging to Nutrabolt. Authorized Retailer will not and will not authorize any third party to alter, obscure, remove, cancel or otherwise interfere with any markings (including without limitation any trademarks, logos, trade names or trading style of Nutrabolt) and other indications of origin that may be placed on the Products or other notices or labelling provided by Nutrabolt. Authorized Retailer acknowledges that Nutrabolt is the exclusive owner or a licensee of the trademarks, copyrights and other intellectual property related to the Products and Authorized Retailer has no right, title or interest whatsoever in the trademarks, copyrights or other intellectual property or any goodwill associated therewith and that all goodwill associated with the trademarks, copyrights and other intellectual property as and between Nutrabolt and the Authorized Retailer is owned by Nutrabolt. Furthermore, Authorized Retailer agrees not to represent in any manner that it has acquired any ownership rights in the trademarks, copyrights or other intellectual property of Nutrabolt or its Products. Authorized Retailer shall not challenge or encourage anyone to challenge Nutrabolt’s rights in the trademarks associated with the Products or attempt to file or register the same or similar trademarks as those owned by Nutrabolt anywhere in the world. Authorized Retailer further agrees that it will not misuse, misrepresent, or take any other actions, which will damage, derogate, detract or adversely affect Nutrabolt’s rights in the trademarks or other intellectual property associated with the trademarks. Authorized Retailer acknowledges that a breach of its obligations under this Section 9 will cause Nutrabolt irreparable damages which may not be compensable by monetary damages, and in the event of such breach, in addition to any other rights or remedies which Nutrabolt may have, Nutrabolt may seek and obtain emergency injunctive relief, without the necessity of posting bond (unless otherwise required by law).
9.2 Authorized Retailer shall, during the term of this Agreement, have the right to use and display Nutrabolt’s trademarks and copyrighted material in the Territory solely in connection with the marketing, sale, advertisement and support of the Product in the Territory, in accordance with the terms of this Agreement and, except as may be otherwise permitted in writing by Nutrabolt, for no other purpose whatsoever.
9.3 Authorized Retailer acknowledges and agrees that Authorized Retailer shall assist Nutrabolt in the protection of Nutrabolt’s intellectual property rights with respect to the Products, and shall immediately report to Nutrabolt any actual, potential or threatened infringements of the trademarks, copyrights or other intellectual property of Nutrabolt by a customer of Authorized Retailer or by any other third party, or any matter involving a customer of Authorized Retailer or any other third party which may give rise to any infringement or any imitation of Product of which Authorized Retailer is or may become aware. Authorized Retailer shall not initiate any protective action with respect to the trademarks or Product without prior written authorization of Nutrabolt.
- Authorized Retailer’s Indemnification of Nutrabolt.
10.1 Authorized Retailer hereby agrees to indemnify, defend and hold harmless Nutrabolt and any of Nutrabolt’s parents, affiliates, subsidiaries and their members, managers, shareholders, officers, directors, agents, employees, successors and assigns (collectively, the “Nutrabolt Indemnitees”) from and against any and all claims, losses, demands, actions, judgments, liabilities, expenses and damages (including reasonable outside attorneys’ fees) arising out of or relating to any breach of any representation or warranty of Authorized Retailer contained herein or any other term or condition of this Agreement by Authorized Retailer.
10.2 Any obligation of Authorized Retailer to indemnify Nutrabolt or any Nutrabolt Indemnitee shall not extend to any claims, losses, demands, actions, judgments, liabilities, expenses and damages (including Nutrabolt Indemnitees’ reasonable outside attorneys’ fees) that result from any Nutrabolt Indemnitee’s own acts of gross negligence, intentional tortious acts, misstatements of fact or misrepresentations regarding the Products.
10.3 If any claim is asserted against a Nutrabolt Indemnitee for which it is entitled to indemnification hereunder, Nutrabolt shall notify the Authorized Retailer in writing with reasonable promptness and the Authorized Retailer shall thereafter takes all steps necessary to fulfil its indemnity obligations including but not limited to employing counsel which is reasonably acceptable to Nutrabolt. The Nutrabolt Indemnitee shall have the right to be kept fully informed of the progress of such defense. In connection therewith, Nutrabolt and any applicable Nutrabolt Indemnitee shall cooperate fully to make available to the Authorized Retailer all reasonably pertinent information under Nutrabolt’s or the applicable Nutrabolt Indemnitee’s control. If the Authorized Retailer does not notify Nutrabolt in writing within ten (10) business days from the date of such notice that it will assume the entire control of such defense, the Authorized Retailer, Nutrabolt or the Nutrabolt Indemnitee shall assume control of the defense with counsel of their choosing and shall thereafter reimburse Nutrabolt and any applicable Nutrabolt Indemnitee all of its expenses, costs, fees and damages for such defense when they are incurred. For the avoidance of doubt, Authorized Retailer shall not be permitted to settle or comprise any claim which creates any obligations or admits any liability or wrongdoing on the part of Nutrabolt without Nutrabolt’s express written approval.
10.4 If Nutrabolt becomes aware of any action by Authorized Retailer or Authorized Retailer’s customers not involving a third party claim for which Nutrabolt or any Nutrabolt Indemnitee may be entitled to indemnification hereunder, Nutrabolt or any Nutrabolt Indemnitee may make a claim for indemnification hereunder by giving written notice to the Authorized Retailer, which notice shall briefly explain the nature and basis of the claim. Authorized Retailer shall notify Nutrabolt or the Nutrabolt Indemnified Party within ten (10) business days of receipt of the notice whether Authorized Retailer disputes the claim.
11.1 As used in this Section 11, “Confidential Information” means all information, substances, and materials which are proprietary and/or confidential, including but not limited to data, formulas, methods, processes, specifications, information or documents regarding intellectual property, patents, patent applications, trademarks, trademark applications, service marks, service mark applications, technical developments, improvements, products, product formulas, plans, designs, ideas, concepts, costs, prices, payment terms, finances, manufacturing processes, marketing plans and support, promotions, personnel, customers, suppliers, research, development or know how, and any other technical or business information. The term Confidential Information shall not include information which is (a) in or enters the public domain other than through any act of the Authorized Retailer; (b) provided to Authorized Retailer by a third party who is not under any confidentiality obligations and otherwise has the right to disclose such information; or (c) was in Authorized Retailer’s possession prior to disclosure by or on behalf of Nutrabolt and which can be proven by documentary evidence.
11.2 Authorized Retailer agrees to protect the confidentiality of Nutrabolt’s and its affiliates’ Confidential Information in the same manner, and using the same degree of care, that it uses to protect the confidentiality of its own trade secrets and Confidential Information, but in no event shall Authorized Retailer use less than a reasonable manner or reasonable degree of care.
11.3 Authorized Retailer shall not at any time disclose or permit to be disclosed to any person or company any Confidential Information relating to Nutrabolt’s business or affairs or the business or affairs of any affiliate of Nutrabolt unless otherwise required by law, a court of competent jurisdiction or regulatory body, provided that Authorized Retailer (a) notifies Nutrabolt (to the extent permitted by law or regulation) as soon as possible in order to give Nutrabolt the opportunity to seek any other legal remedies to maintain such information in confidence; and (b) uses its best efforts to limit the disclosure and maintain confidentiality to the extent possible.
11.4 All obligations of confidentiality shall continue so long as such information is Confidential Information as defined in Section 11.1.
- Law; Jurisdiction and Venue; Waiver of Jury Trial; Attorney’s Fees.
12.1 Applicable Law. Any dispute arising out of, or in connection with, this Agreement, including without limitation, any questions regarding its existence, validity, or termination, shall be governed by, interpreted and construed in accordance with the laws of the State of New York, without reference to any conflict of laws or choice of law rules which would otherwise result in the application of the laws of another jurisdiction.
12.2 Jurisdiction and Venue; Waiver of Jury Trial; Attorney’s Fees. The Parties consent and agree to the sole and exclusive jurisdiction and venue of the courts located in New York, New York in connection with any claim, action or dispute related to this Agreement. Each Party hereby waive any right to assert a defense related to inconvenient forum. The parties acknowledge and agree that any controversy relating in any manner to this Agreement may involve difficult or complex issues which may be better understood by a judge rather than a jury. Accordingly, the parties hereby knowingly, voluntarily and intentionally waive their rights to a jury trial in connection with any such litigation and consent to a trial before a judge, sitting without a jury. In the event Nutrabolt takes any action to enforce the terms of this Agreement, in addition to any other rights and remedies, if Nutrabolt prevails, Nutrabolt shall be entitled to reimbursement of its outside attorney’s fees and expenses.
Notice. Any notice to be given under this Agreement shall be in writing and given to a Party at such Party’s address set forth above, or at such other address as a Party hereafter may specify in a notice given in the manner required under this Section. All notices to Nutrabolt shall be sent to the attention of Nutrabolt’s Chief Legal Officer, Michael J. DiMaggio, Esq. with a copy concurrently sent to Harris Beach, PLLC 333 Earle Ovington Blvd, Suite 901, Uniondale, NY 11553, attn.: Craig M. Spierer, Esq. Except as otherwise expressly permitted herein, any notice hereunder shall be given only by, and shall be deemed to have been received upon: (a) registered or certified mail, return receipt requested, on the date on which such notice or request is received as indicted in such return receipt; or (b) delivery by a nationally recognized overnight courier, one (1) business day after deposit with such courier.
14.1 Amendment. Except as otherwise provided in Sections 1.3 and 1.4, this Agreement may be amended only by the mutual agreement of authorized representatives of the Parties in writing.
14.2 Assignment. Authorized Retailer may not assign this Agreement or any right or obligation herein without Nutrabolt’s express written approval.
14.3 Waiver. The waiver of a breach of any term or condition of this Agreement shall not be deemed to constitute the waiver of any further breach of such term or condition or the waiver of any other term or condition of this Agreement.
14.4 Severability. In the event any of the provision of this Agreement or the application of any provision to any Party hereto shall be held by a court of competent jurisdiction to be unlawful or unenforceable, such provision shall be enforced to the greatest extent provided by law, and the remaining provision of this Agreement shall not be affected, impaired or invalidated in any manner.
14.5 Insurance. Authorized Retailer shall maintain a comprehensive general and products liability occurrence policy consistent with industry standards and shall name Nutrabolt as an additional insured. Upon the request of Nutrabolt, Authorized Retailer shall provide Nutrabolt with evidence of compliance with this Section.
14.6 Construction. This Agreement shall be deemed to have been drafted by both Parties with the assistance of counsel and each Party had a full and fair opportunity to consult with counsel regarding this Agreement. No ambiguity or omission in this Agreement shall be construed or resolved against any Party on the grounds that this Agreement or any of its provisions was drafted or proposed by that Party.
14.7 Limitation of Liability. IN NO EVENT SHALL NUTRABOLT BE LIABLE FOR PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS, WHETHER IN CONTRACT, TORT OR STRICT LIABILTY.
14.8 Survival. The provisions of Sections 1.2, 3.4, 9, 10, 11, 12, 13, and 14 shall survive the termination or expiration of this Agreement.
14.9 Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Faxed or pdf copies of manually executed signature pages to this Agreement will be fully binding and enforceable without the need for delivery of the original manually executed signature page.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first written above.
WOODBOLT DISTRIBUTION, LLC d/b/a NUTRABOLT